On May 6, California Governor Gavin Newsom imposed a new order putting the burden on employers in worker’s compensation claims due to Covid-19 that is retroactive to March 19. Workers who contract COVID-19 while on the job may be eligible to receive workers’ compensation. The Governor signed an executive order that creates a time-limited rebuttable presumption for accessing workers’ compensation benefits applicable to Californians who must work outside of their homes during the stay at home order.
The rebuttable presumption will apply if an employee tested positive for COVID-19 or was diagnosed with COVID-19, and this was confirmed by a positive test within 14 days of performing a labor or service at a place of work after the stay at home order was issued on March 19, 2020. The presumption will stay in place for 60 days after issuance of the executive order.
The text of Executive Order No. N-62-20 includes the following:
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IT IS HEREBY ORDERED THAT:Any COVID-19-related illness of an employee shall be presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if all of the following requirements are satisfied:
a. The employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction;
b. The day referenced in subparagraph (a) on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020;
c. The employee’s place of employment referenced in subparagraphs (a) and (b) was not the employee’s home or residence; and
d. Where subparagraph (a) is satisfied through a diagnosis of COVID-19, the diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.
Worker’s compensation will be awarded unless the employer can demonstrate that the infection did not occur in the workplace.
What Can an Employer Do?
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If your business receives a worker’s compensation claim for Covid, the burden will be on the employer to show that the employee did not contract Covid in the workplace. Practicing quarantine measures for anyone who mentions exposure could be helpful in rebutting this presumption.
An employer should document any and all measures to prevent the spread of the disease, such as:
documenting any quarantine directives to require an employee to stay home;
Selecting a safety captain to monitor and enforce the company’s new safety policies, and make weekly written reports of any incidents, changes, or improvements;
having employees wear face coverings (even providing to employees if possible or required);
encouraging employees not to share office equipment, such as phone, work stations, computers, and desks;
providing no-touch receptacles and equipment;
requiring social distancing;
providing hand sanitizer throughout the workplace;
recording evidence of staggered shifts using timekeeping records and notice to employees of changes in shifts; and
providing Personal Protective Equipment (PPE).
Taking Photographs to Demonstrate Evidence of Protective Measures
In addition to distributing new policies to employees and explaining the new return-to-work rules, you may want to take photographs of the workplace on a weekly basis to show that your protective measures are actually being implemented in practice. Take the photographs using a time and date stamp, and keep copies in a secure file. Photograph the following:
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Social distancing at work in practice (show work stations spread out, changes to break room layout);
Show Personal Protective Equipment (PPE) stations around the workplace (masks, gloves, hand sanitizer, cleaning products) and employees actually wearing PPE;
Display required Covid-19 postings in the break room and around the workplace (such as postings from OSHA, the CDC, and state and local ordinances, etc.)
Cover the time clock in a saran wrap material and change every 30-60 minutes. Include hand sanitizer and/or gloves nearby for employees to use in high-touch areas.
Document Social distancing in the break room (for example, cover every other chair with tape to prevent employees from sitting next to each other);
Put an “X” in tape on the ground in front of the time clock to show where employees can stand (similar to what you can now see in the grocery store to enforce 6 feet of social distancing ).
If masks are required for employees or essential employees in your jurisdiction, consider disciplining employees who are not wearing masks when in close quarters to other employees, unless they have provided evidence that a medical condition prohibits that they wear a mask.
The Grady Firm can help you assess your risks, document your measures to prevent COVID-19 in the workplace, answer your employment law questions, and assist with preparing the above policies.
Please call us at +1 (949) 798-6298 to book a complimentary consultation, or schedule a call on our website. Make sure to visit our COVID-19 page and blogs, videos, and shop our helpful custom documents, that will help prepare you in the future.
This article does not constitute legal advice. Please speak with a qualified employment lawyer in your jurisdiction before creating new employee policies.